Common use of First Offer Clause in Contracts

First Offer. (a) So long as any shares of the Series B Preferred Stock are outstanding, if the Company proposes to issue any shares of Common Stock or any security convertible into or exchangeable for shares of Common Stock, or any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock (in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), in each case in connection with a financing by the Company, subject to Section 5.5 hereof (an "OFFERING"), then the Company shall prior thereto or simultaneously therewith offer to each Investor a percentage of the securities being issued in the Offering (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership of the aggregate of the Underlying Common Stock and the Common Stock (such Investor's "PERCENTAGE SHARE"). Such offer shall be made by written notice setting forth the quantity and description of the security proposed to be issued, the price to be received in exchange therefor and the proposed date, time and place of the closing of the Offering (the "OFFERING NOTICE"). The Offering Notice shall be delivered by hand or by first-class, certified or overnight mail, postage prepaid, or by telecopier, by the Company to each Investor. (b) Each such Investor shall thereupon be entitled, for a period ending thirty (30) days after the date of the Offering Notice (the "ELECTION PERIOD"), to elect to purchase, at the price and upon the terms set forth in the Offering Notice, all or a portion of such Investor's Percentage Share of the Offering Securities by notice to the Company during the Election Period. (c) Each Investor electing to purchase its Percentage Share of the Offering Securities pursuant to this Section 5.1 (a "PARTICIPATING INVESTOR") shall, concurrently with the closing of any such Offering, deliver to the Company an official bank or certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (or at such other place as the Company may designate at least ten (10) days prior to the closing of such Offering); and simultaneously therewith the Company shall issue and deliver to each Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the issue thereof.

First Offer. (a) So long as If the Offeror, the Owner and/or any shares of the Series B Preferred Stock are outstanding, if Property Owners intends to Transfer any of the Company proposes Interests and/or Properties to issue any shares a Person other than an Affiliate of Common Stock or any security convertible into or exchangeable for shares of Common Stock, or any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock the Offeror (in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), in each case in connection with a financing by the Company, subject to Section 5.5 hereof (an "OFFERING"3(b)), then the Company Offeror shall prior thereto or simultaneously therewith first offer to each Investor a percentage Transfer such Interests and/or Properties (as applicable) to the Partnership in accordance with the following: (i) The Offeror shall first deliver written notice (the “Offer Notice”) to the Partnership of the securities intention to transfer any or all of the Interests and/or the Properties by the Offeror, the Owner and/or the Property Owners (as applicable), which shall specify the Interests and/or the Properties being issued in the Offering offered (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership of the aggregate of the Underlying Common Stock and the Common Stock (such Investor's "PERCENTAGE SHARE"“Offered Assets”). Such offer shall be made by written notice setting forth the quantity and description of the security proposed to be issued, the price to be received in exchange therefor and the proposed date, time and place of the closing of the Offering (the "OFFERING NOTICE"). The Offering Notice shall be delivered by hand or by first-class, certified or overnight mail, postage prepaid, or by telecopier, by the Company to each Investor. (bii) Each such Investor The Partnership shall thereupon be entitled, for a period ending have thirty (30) days after the date following its receipt of the Offering Offer Notice to deliver a proposal (the "ELECTION PERIOD"“Proposal”) to the Offeror, which shall specify: (A) the proposed purchase price for the Offered Assets (the “Offer Price”); (B) any additional fees or other consideration to be paid for the Offered Assets (together with the Offer Price, the “Offer Consideration”), (C) a proposed date for the closing of the purchase and sale of the Offered Assets; (C) all other material terms and conditions of the proposal to elect purchase the Offered Assets; and (D) a statement providing that the Proposal constitutes a binding offer to purchase, at purchase the price Offered Assets for the Offer Consideration and upon on the other terms and subject to the conditions set forth in the Offering NoticeProposal. The Partnership shall have the right to purchase all, all or a portion of such Investor's Percentage Share but not less than all, of the Offering Securities by notice Offered Assets on the terms and subject to the Company during conditions set forth in the Election PeriodProposal. (ciii) Each Investor The Offeror shall have the right to sell all, but not less than all, of the Offered Assets on the terms and subject to the conditions set forth in the Proposal. The Offeror may exercise such right only by delivering, to the Partnership within sixty (60) days following its receipt of the Proposal, written notice (a “ROFO Acceptance Notice”) electing to purchase its Percentage Share sell the Offered Assets for the Offer Consideration and upon such other terms and conditions set forth in the Proposal. If the Offeror fails to elect in accordance with the provisions of this Section 3(a)(iii) to sell all of the Offering Securities Offered Assets, then the Offeror shall be deemed to have declined to sell any of the Offered Assets. Each ROFO Acceptance Notice shall be deemed to be an irrevocable commitment to sell to the Partnership the Offered Assets which the Partnership has elected to purchase for the Offer Consideration and upon such other terms and conditions set forth in the Proposal pursuant to such ROFO Acceptance Notice. (iv) If the Offeror has elected in accordance with the provisions of this Section 5.1 3 to sell the Offered Assets, the Partnership shall be obligated to purchase at the Offer Consideration such Offered Assets, at a closing as set forth in Section 4 hereof. (v) If the Offeror does not elect to sell all of the Offered Assets available for purchase under this Section 3 within the period provided in Section 3(a)(iii), (A) the Partnership shall be under no obligation to purchase any of the Offered Assets unless the Partnership so elects and (B) the Offeror may, within a "PARTICIPATING INVESTOR"period of one hundred eighty (180) shalldays from the expiration of the time within which the Offeror may elect to sell the Offered Assets, concurrently subject to the provisions of this Section 3, sell all (but not less than all) of the Offered Assets to one or more bona fide third party purchasers that are not Affiliates of the Offeror (each a “Third Party Transferee”) at a price not less than ninety five percent (95%) of the Offer Consideration, and on such other economic terms and conditions as are no more favorable to the proposed Third Party Transferee than those specified in the Proposal. (vi) If the Offeror does not complete the sale of the Offered Assets within such one hundred and eighty (180) day period, the provisions of this Section 3 shall again apply, and no sale of such Offered Assets by the Offeror, the Owner and/or the Property Owners shall be made otherwise than in accordance with the closing terms of any such Offering, deliver to the Company an official bank or certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (or at such other place as the Company may designate at least ten (10) days prior to the closing of such Offering); and simultaneously therewith the Company shall issue and deliver to each Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the issue thereofthis Agreement.

First Offer. The transferring Shareholder shall first deliver to the Company and each Major Shareholder (the "Offered Shareholders") a written notice (an "Offer Notice"), that shall (a) So long as any shares state the transferring Shareholder's intention to ------ Transfer Stock to one or more Persons in a bona fide, arm's length transaction, the amount and type of Stock to be Transferred (the Series B Preferred Stock are outstanding, if the Company proposes to issue any shares of Common Stock or any security convertible into or exchangeable for shares of Common "Subject Stock, or any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock (in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), in each case in connection with a financing by the Company, subject to Section 5.5 hereof (an "OFFERING"), then the Company ------------- purchase price therefor (which shall prior thereto or simultaneously therewith offer to each Investor be payable in cash) and a percentage summary of the securities being issued in the Offering (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership other material terms of the aggregate of the Underlying Common Stock proposed Transfer and the Common Stock (such Investor's "PERCENTAGE SHARE"). Such offer shall be made by written notice setting forth the quantity and description of the security proposed to be issued, the price to be received in exchange therefor and the proposed date, time and place of the closing of the Offering (the "OFFERING NOTICE"). The Offering Notice shall be delivered by hand or by first-class, certified or overnight mail, postage prepaid, or by telecopier, by the Company to each Investor. (b) Each such Investor shall thereupon be entitled, for a period ending thirty (30) days after offer the date of Company and the Offering Notice (Offered Shareholders the "ELECTION PERIOD"), option to elect to purchase, at the price and upon the terms set forth in the Offering Notice, acquire all or a portion of such Investor's Percentage Share Subject Stock upon the terms and subject to the conditions of the Offering Securities proposed Transfer as set forth in the Offer Notice (the "Offer"); provided that such Offer may ----- -------- provide that it must be accepted by the Company and Offered Shareholders (in the aggregate) on an all or nothing basis (an "All or Nothing Sale"). The Offer ------------------- shall remain open and irrevocable for the periods set forth below (and, to the extent the Offer is accepted during such periods, until the consummation of the sale contemplated by the Offer). The Company shall have the right and option, for a period of 30 days after delivery of the Offer Notice (the "Company Acceptance Period"), to accept all or any part of the Subject Stock at ------------------------- the cash purchase price and on the terms stated in the Offer Notice. Such acceptance shall be made by delivering a written notice to the transferring Shareholder and each of the Offered Shareholders within the Company during the Election Acceptance Period. (c) Each Investor electing to purchase its Percentage Share of the Offering Securities pursuant to this Section 5.1 (a "PARTICIPATING INVESTOR") shall, concurrently with the closing of any such Offering, deliver to the Company an official bank or certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (or at such other place as the Company may designate at least ten (10) days prior to the closing of such Offering); and simultaneously therewith the Company shall issue and deliver to each Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the issue thereof.

First Offer. (a) So long as If at any shares time any of the Series B Preferred Stock are outstandingKey Stockholders wishes to sell, if assign, transfer or otherwise dispose of any or all of such Key Stockholder's Shares pursuant to the terms of a bona fide offer received from a third party, such Key Stockholder shall submit a written offer to sell such Shares to the Company on terms and conditions, including price, not less favorable to the Company than those on which such Key Stockholder proposes to issue any shares of Common Stock or any security convertible into or exchangeable for shares of Common Stock, or any unit of securities which includes shares of Common Stock or any security convertible into or exchangeable or exercisable for shares of Common Stock (in the case of securities convertible into or exchangeable or exercisable for shares of Common Stock, whether or not so convertible or exchangeable or exercisable only upon payment of additional consideration), in each case in connection with a financing by the Company, subject sell such Shares to Section 5.5 hereof (an "OFFERING"), then the Company shall prior thereto or simultaneously therewith offer to each Investor a percentage of the securities being issued in the Offering such third party (the "OFFERING SECURITIES") equal to such Investor's then percentage ownership of the aggregate of the Underlying Common Stock and the Common Stock (such Investor's "PERCENTAGE SHARE"). Such offer shall be made by written notice setting forth the quantity and description of the security proposed to be issued, the price to be received in exchange therefor and the proposed date, time and place of the closing of the Offering (the "OFFERING NOTICEFirst Offer"). The Offering Notice First Offer shall disclose the identity of the proposed purchaser or transferee, the Shares proposed to be sold or transferred (the "Offered Shares"), the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the First Offer, the Company shall give notice to the Key Stockholder of its intent to purchase all or any portion of the Offered Shares on the same terms and conditions as set forth in the First Offer. If the Company does not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(a). The Company shall act upon the First Offer as soon as practicable after receipt of the First Offer, and in any event within fifteen (15) days after receipt thereof. In the event that the Company shall elect to purchase all or part of the Offered Shares covered by the First Offer, the Company shall communicate in writing such election to purchase to whichever of the Key Stockholders has made the First Offer, which communication shall be delivered by hand or by first-classmailed to such Key Stockholder at the address set forth on Schedule II hereto and as described in Section 7 below and shall, certified or overnight mailwhen taken in conjunction with the First Offer be deemed to constitute a valid, postage prepaid, or by telecopier, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Company does not purchase all of the Offered Shares offered by the Company Key Stockholder pursuant to each Investor. (b) Each such Investor shall thereupon be entitled, for a period ending and within thirty (30) days after the First Offer, the agreement to purchase the Offered Shares shall be deemed null and void. Notwithstanding the provisions of this subsection (a), the Key Stockholder proposing to sell the Offered Shares shall have the discretion to allow the Company to buy a portion of such Offered Shares. (b) If the Company fails to purchase all or, subject to the Key Stockholder's consent, any part of the Offered Shares, the Key Stockholder shall submit a written offer (the "Second Offer") to sell such Offered Shares (the "Remaining Shares") to the Preferred Shareholders on terms and conditions, including price, not less favorable to the Preferred Shareholders than those on which such Key Stockholder proposes to sell such Remaining Shares to the third party. The Second Offer shall also disclose the identity of the proposed purchaser or transferee, the Remaining Shares proposed to be sold or transferred, the agreed terms of the sale or transfer and any other material facts relating to the sale or transfer. Within fifteen (15) days after receipt of the Second Offer, the Preferred Shareholders shall give notice to the Key Stockholder of their intent to purchase all or any portion of the Remaining Shares on the same terms and conditions as set forth in the Second Offer. Each Preferred Shareholder shall have the right to purchase that number of the Remaining Shares as shall be equal to the aggregate Remaining Shares multiplied by a fraction, the numerator of which is the number of shares of Common Stock of the Company then owned by such Preferred Shareholder (including any shares of Common Stock deemed to be owned hereunder on the date of the Offering Notice second offer, being a number of shares equal to (i) that into which the Series A-1 Convertible Preferred Stock, $.01 par value per share (the "ELECTION PERIODSeries A-1 Preferred Stock"), Series B-1 Convertible Preferred Stock, $.01 par value per share (the "Series B-1 Preferred Stock"), Series C Convertible Preferred Stock, $.01 par value per share (the "Series C Preferred Stock"), Series D Convertible Preferred Stock, $.01 par value per share (the "Series D Preferred Stock"), Series E Preferred Stock, Series A-2 Convertible Preferred Stock, $.01 par value per share (the "Series A-2 Preferred Stock"), Series B-2 Convertible Preferred Stock, $.01 par value per share (the "Series B-2 Preferred Stock"), Series C-2 Convertible Preferred Stock, $.01 par value per share (the "Series C-2 Preferred Stock"), Series D-2 Convertible Preferred Stock, $.01 par value per share (the "Series D-2 Preferred Stock"), and Series E-2 Convertible Preferred Stock, $.01 par value per share (the "Series E-2 Preferred Stock" and together with the Series A-1 Preferred Stock, Series B-1 Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series A-2 Preferred Stock, Series B-2 Preferred Stock, Series C-2 Preferred Stock and Series D-2 Preferred Stock, the "Preferred Stock"), held by such Preferred Shareholder is convertible and (ii) the shares of Common Stock issuable upon exercise of the Warrants), and the denominator of which is the aggregate number of shares of said Common Stock then issued and outstanding and held by (and deemed to be held by) all the Preferred Shareholders. (The amount of shares each Preferred Shareholder or Qualified Transferee, as that term is defined below, is entitled to purchase under this Section 3 shall be referred to as its "Pro Rata Fraction"). Each Preferred Shareholder shall have the right to transfer its right to any Pro Rata Fraction or part thereof to any Qualified Transferee. In the event a Preferred Shareholder does not wish to purchase or to transfer its right to purchase its Pro Rata Fraction, then any Preferred Shareholders who so elect shall have the right to purchase, on a pro rata basis with any other Preferred Shareholders who so elect, any Pro Rata Fraction not purchased by a Preferred Shareholder or Qualified Transferee. If the Preferred Shareholders do not elect to purchase all of the Offered Shares, then there shall be no right to purchase shares pursuant to this Section 3(b). Each Preferred Shareholder shall act upon the Second Offer as soon as practicable after receipt of the Second Offer, and in all events within fifteen (15) days after receipt thereof. Each Preferred Shareholder shall have the right to accept the Second Offer as to all or part of the Remaining Shares offered thereby. In the event that a Preferred Shareholder shall elect to purchase all or part of the Remaining Shares covered by the Second Offer, said Preferred Shareholder shall individually communicate in writing such election to purchase to whichever of the Key Stockholders has made the Second Offer (including in such writing the number of Remaining Shares such Preferred Shareholder would like to purchase, which, subject to the pro rata reduction set forth above, may be in excess of such Preferred Shareholder's Pro Rata Fraction), which communication shall be delivered by hand or mailed to such Key Stockholder at the address set forth on Schedule II hereto and as described in Section 7 below and shall, when taken in conjunction with the Second Offer be deemed to constitute a valid, legally binding and enforceable agreement for the sale and purchase of the Shares covered thereby. In the event that the Preferred Shareholders do not purchase all of the Remaining Shares offered by the Key Stockholder pursuant to and within thirty (30) days after the Second Offer, each such agreement to purchase the Remaining Shares shall be deemed null and void, and such Remaining Shares may be sold by such Key Stockholder at any time within ninety (90) days after the expiration of the Second Offer. Any such sale shall be at not less than the price and upon other terms and conditions, if any, not more favorable to the terms set forth purchaser than those specified in the Offering NoticeSecond Offer. Notwithstanding the provisions of this subsection (b), all or the Key Stockholder proposing to sell the Remaining Shares shall have the discretion to allow the Preferred Shareholders to buy a portion of such Investor's Percentage Share of the Offering Securities by notice Remaining Shares. Any Remaining Shares not sold within such 90-day period shall continue to be subject to the Company during the Election Period. (c) Each Investor electing to purchase its Percentage Share requirements of the Offering Securities a prior offer and re-sale pursuant to this Section 5.1 (a "PARTICIPATING INVESTOR") shall, concurrently with the closing of any such Offering, deliver to the Company an official bank or certified check for the appropriate amount to the Company by hand delivery or by first-class, certified or overnight mail, postage prepaid addressed to the Company's principal office (or at such other place as the Company may designate at least ten (10) days prior to the closing of such Offering); and simultaneously therewith the Company shall issue and deliver to each Participating Investor certificates representing the Offering Securities being purchased by such Participating Investor. The Company covenants and agrees that all Offering Securities will, upon issuance and payment therefor, be duly and validly issued and outstanding, fully paid and non-assessable and free from all taxes, liens, and charges with respect to the issue thereofsection.